MOORE v. ROWLAND

The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge.

ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS

Before the Court is Edwaun Victor Moore's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In response to the Court's order to show cause why the petition should not be granted, respondent James Rowland filed an answer and a brief in support thereof, to which petitioner replied by filing a traverse. Having reviewed the papers filed in support and in opposition to the petition, the Court rules as follows.

PROCEDURAL BACKGROUND

On September 22, 1997, petitioner was convicted of second degree murder after a jury trial conducted in the Alameda County Superior Court, and, on October 10, 1997, was sentenced to a term of fifteen years to life, which term was enhanced by five years for use of a gun. Additionally, petitioner was convicted of firing at an inhabited dwelling and was sentenced to a term of seven years, which term was enhanced by three years for infliction of great bodily injury. The sentences were imposed consecutively. In the aggregate, the prison term imposed was thirty years to life.

On March 25, 1999, the California Court of Appeal affirmed the convictions and, on April 1, 1999, denied petitioner's petition for a writ of habeas corpus. On July 14, 1999, the California Supreme Court denied review of both decisions.

On January 17, 1993, at about 6:25 p.m., the Oakland Police Department received a report of a shooting on the 9600 block of Walnut Street. Officer Oliver Cunningham responded to the scene where he saw that a tan Honda had crashed into a front yard. The engine was running, the windows were up, and the doors were locked. The glass of the rear window had been shot out. The driver was unconscious and appeared to have a gunshot wound to the back of his head. His face and head were bloody. An autopsy the next day revealed the victim, Carlos Chambers ("Chambers"), died of a gunshot wound to the head. The bullet, which passed through the victim's skull and brain, entered the back of his head on the left side and exited close to the left eyebrow. The victim had no needle or track marks and there were no narcotics in his system. His blood alcohol level was .10.

Crime scene technician Officer Monica Russo and others found evidence indicating the Honda had begun skidding at 9638 Walnut and sideswiped two parked cars in the 9700 block. They found glass slivers in front of 9839 Walnut, and nearby they found an unfired, nine-millimeter Luger bullet manufactured by PMC. There were seven bullet holes in the car, including one each in the top of the trunk, the left side of the roof, and the headrest portion of the driver's seat. Officer Russo found a baton made out of a tree branch on the driver's side floor. There were no drugs or drug paraphernalia, firearms or other weapons in the car.

At the time of the shooting David Price ("Price") was in the home of his girlfriend, Joyce Watson, and her daughters Genita and Brandy (ages 13 and 9). He heard four or five gunshots outside. He went out later that evening and returned between 9:30 and 10:00 p.m. Petitioner, whom Price had known for six to eight months, arrived at the house around 10:00 p.m. with Donald Brown ("Donny"). Donny used the phone while petitioner spoke with Darnell Richardson ("Omar"). Price knew petitioner as a drug dealer in the neighborhood from whom he had bought crack cocaine. Price named other drug dealers in the neighborhood as including Donny, Omar, "Lamore," "Tyrone" (petitioner's brother), and "Chumley."

Price testified he heard Omar tell petitioner: "You shot the fool. It was stupid." Petitioner responded that "he didn't give a fuck," explaining: "The fool tried to rob me." Omar replied, "he's dead." Petitioner again said he "didn't give a fuck" and: "I pulled out my nine and blasted him. Smoked him. Blasted him, same thing." Price understood "my nine" to refer to petitioner's nine-millimeter gun, which Price had seen petitioner carry on numerous occasions, including the day before the shooting. Omar said petitioner was stupid, that he did not have to do that. Petitioner replied, "Fuck it;" "I don't give a fuck if he's dead." Omar advised petitioner to clean himself up because he had powder on his hands and "they can detect powder."

Price, who was concerned for the security of the house and family, told petitioner he had to leave the house because police would be looking for him. This angered petitioner, and he started calling Price "a bunch of motherfuckers and punks and telling [him] that it wasn't [his] house" because he did not pay the bills; only Joyce could tell him to leave her house. Petitioner was holding an empty liquor bottle; Price did not know whether petitioner was drunk, but he was "foaming at the mouth."

Price told Donny to get off the phone and take petitioner away. Donny, too, became angry and called Price names. Price opened the front door and told the men to leave; petitioner seemed to want to fight. He "got in [Price's] face" and continued to call him names. Omar stood between Price and petitioner; eventually petitioner and Donny left. Price locked the door and sat on the couch. Within a couple of minutes he heard gunshots. He was struck in the hip by two bullets; he saw bullet holes in the walls of his house. On the exterior of the house police technicians found 11 nine-millimeter PMC luger shell casings. There were 9 strike marks on the exterior of the house, and 7 bullets had penetrated into the interior.

Genita Henry, Joyce Watson's daughter, also testified about the argument between Price and petitioner, and the shots fired into the house shortly after petitioner left.

According to the testimony of Mario Cleveland ("Cleveland"), two days after the shooting, petitioner brought three guns, including a nine-millimeter pistol, to Cleveland's home. Petitioner told Cleveland he shot the victim in the car because the victim had "disrespected him." Petitioner said he was standing on Walnut Street with a group of men selling drugs. The victim drove up and got out of his car. He walked up to one of the men, talked to him and purchased drugs, then walked back to his car. The other drug dealers were "belittling" and "teasing" petitioner because the victim did not come to him first to make his purchase. Petitioner waited until the driver got into his car, walked up to the car, and fired a shot. The car moved and petitioner kept shooting until his clip was empty.

Petitioner also told Cleveland he shot a man named "Dave" because Dave was disrespecting him. When Cleveland saw petitioner two weeks later, petitioner bragged to him and others about shooting someone.

Petitioner was arrested on May 19, 1993. He did not appear to be under the influence of alcohol or drugs. Oakland Police Officers Douglas Wayne and Paul Berlin gave petitioner his Miranda rights, interviewed him, and took a taped statement, during which he did not appear to be under the influence of narcotics. Petitioner appeared to understand the questions, and he answered them. The statement was played for the jury.

In his statement, petitioner stated that about a week before January 17, petitioner was approached on Walnut Street by Price and a stranger, who later turned out to be the victim, Chambers. Chambers pointed a gun at petitioner and demanded money, robbing petitioner of $400 petitioner had won in a dice game. About a week later, petitioner was on Walnut Street carrying a nine-millimeter pistol. He saw a brown compact car arrive; Price got in, and they drove off. The car returned about 20 minutes later, and when Price got out and the car drove away, petitioner recognized the driver as the man who robbed him the week before. He got his gun, which he had stowed on top of a tire in the wheel well of a car, walked into the street and cocked his gun, although he just wanted to talk to the man. The car began to drive away; petitioner saw the driver reach down. Thinking the driver was reaching for a gun, petitioner fired at the driver's side door. He could not remember how many shots he fired and did not know if he hit the driver. Just then Donny drove up; petitioner got in his car and they left. The next day, petitioner read in the paper that Chambers had died.

In his statement, petitioner also stated that petitioner and Donny went to Price's house, where petitioner confronted Price about Chambers robbing petitioner. Price threatened to kick petitioner's ass and told him to leave. Petitioner left, retrieved his gun from the same car where he had previously stored it, shot into Price's house, hid the gun in a nearby yard and left the area.

The homicide victim's sister, Latanja Chambers, testified she saw her brother the afternoon of the shooting when he and others were watching a football game in his home. The victim was a law clerk who had worked at the same firm for three years. His sister never saw him carry a gun or ingest narcotics, and to her knowledge he had never done either.

Petitioner testified in his own behalf and denied shooting Chambers but said he witnessed the crime. On January 17, he was behind a gate of an apartment complex selling drugs to pedestrians. He owned a nine-millimeter gun for protection but was not carrying it that day. He was one of about 10 to 15 people who dealt drugs on Walnut near 98th Street. Among them were his brother Tyrone, Omar, Donny, Chris, Corey and Chumley. Petitioner and his brother were each known as "Twin" because they looked alike. It would not bother him if his brother took a drug sale from him.

Petitioner saw the victim's car pull up around 6:00 p.m. He recognized the car from previous times the victim had bought drugs. Three drug dealers "rushed" the car, that is, ran up to it hoping to make a sale. Petitioner knew the three but refused to state their names. Petitioner saw what he thought was a drug transaction with one of the dealers. As the car drove away, one dealer shot at the car. Petitioner left the area of the shooting, went to a friend's house and then drove around or "got high or something." He probably bought heroin, which was a daily habit, and a pint of cognac.

Later that night petitioner was high. He went to Price's house where he talked to Omar. Petitioner thought Donny arrived after him. Price told petitioner the police were after him and he would have to leave. Petitioner "got attitude" and asked Price "what the fuck he was talking about." Petitioner said he had done nothing, so why would the police be looking for him? Omar stepped in to prevent a fight; Price told Donny to get off the phone, which angered Donny, who left the house with petitioner. Petitioner and Omar got in petitioner's car and drove away, leaving Donny and Price shouting at each other. Petitioner did not hear any shots and he remained with Omar that night.

Petitioner did not learn he was a suspect until February 1. Although he knew the police were looking for him, he made no effort to contact them. In fact, he evaded the police so that the people on Walnut Street would not think he was telling anything he knew. He was concerned for himself, his mother, and his brother.

Petitioner admitted that when he was arrested he denied being Edwaun Moore and gave a false name, "Brown." When he arrived at the police station he asked to call his mother, but was refused. He normally used heroin every two hours, and he had used the drug at about 2:00 a.m., just before his arrest. He had not slept for 20 hours before the arrest and was suffering from heroin withdrawal.

Petitioner waived his Miranda rights because he "wasn't going to snitch and . . . didn't know what to do and . . . was under the influence of drugs, so basically [he] felt that it . . . would be best for [him] to make up a story than, on the other hand, snitch on somebody." He asked to talk to his mother but was refused. Sergeant Berlin wrote on a piece of paper: "death penalty," "first degree," "second degree," and "manslaughter." He pointed to ...

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